3 F. 124 -

3 F1d 124

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Case Text

124

FEDERAL

very purpose and no other. At this stage of the case this petition was interposed, and this court invoked to take the next judicial step in the prosecution. Does the claim that there w)l.s no court in which the prosecution was pending stand on any solid ground? In my judgment, clearly not. My conclusion is, therefore, that when this petition was filed it asked for the removal of a criminal prosecution which had been commenced against the petitioners in a court of the state of Georgia; and, as the petition sets out all the other .facts necessary under section 643 of the Revised Statutes to justify a removal of a criminal prosecution from a state to a federal court, that the filing of the petition and the service on the state court of a duplicate of the writ of habeas corpus cum causa, ipso facto, removes the prosecution to this court.

STATE

V.

PORT and others.

July, 1880.)

(Circuit Court, N. D. Georgia.

1.

MURDER-RESISTANCE TO REVENUE RIGHT OF SELF-DEFENCE-ARREBT WITHOUT

'V

TO ARRESTARRANT.

Preliminary examination upon the charge of murder.

S. B. Spencer, for the State. A. S. Darnell, Ass't Dist. Att'y, John L. Hopkins, J. S.
Bigby and Geo. S. Thomas, for defendants. WOODS, C. J. The defendants, thirteen in number, were charged with the murder of William A. Jones, on June 24th . last, near Red Oak station, in Campbell county, in this state. An affidavit, charging them with this crime, was made by one Mary E. Jones, before John B. Suttles, a justice of the peace' of Campbell county, who thereupon issued a warrant for the arrest of the defendants. By the authority of this warrant they were taken into custody by the sheriff of Fulton county, within whose limits they were found. The defendants thereupon filed their petition for a removal of the prosecution against them to this court, under section 643 of the

STATE V. POB'r,

125

Revised Statutes of the United States. After full argument an order for removal was made. The cause now comes up for a preliminary examination of the charge against the accused, the question being whether they should be held to answer the accusation against them at the next term of this court, or b6l discharged. The reply of the defendants to the charge made against them is set forth in their petition for the removal of the cause to this court, and is relied on at this hearing. It is as follows: "At the time the alleged killing occurred they and all of them were officers appointed under and acting by authority of the internal revenue laws of the United States; that they were deputy collectors of internal revenue in and for the second of Georgia, which said collection district includes said county of Campbell, and that each of your petitioners were there, aud then and there, acting under color of said office and of said internal revenue laws, and that the act for the alleged commission of which said affidavit was made, and said warrant of arrest was issued, was performed, if performed at all, in their own necessary self-defence, and while engaged in the discharge of their duties as deputy collectors of internal revenue, as aforesaid, and while acting under authority of said internal revenue laws of the United States as aforesaid; that what they did was done under and by right of their said office; that it was their duty to seize illicit distilleries and the apparatus that is used for the unlawful distillation of spirits, and that while attempting to seize such distilleries as aforesaid in said collection district, and in said northern district of Georgia, and being engaged in such attempt to seize said distilleries under and by authority of the revenue laws of the United States as such deputy collectors as aforesaid, they were assaulted and fired upon with guns and other deadly weapons by a number of armed men, and that in the defence of their own lives they returned the fire of their assailants, which is the alleged murder mentioned in said affidavit and warrant of arrest as aforesaid." The testimony establishes beyond controversy the following facts: On the night of June 23d the defendants, all of

126

FEDERAL REEOBTEB.

whom held commissions as deputy collectors of internal revenue for the second collection district of Georgia, and one of them, Robert Bolton, also a commission as deputy United States marshal, took the 11 o'clock train on the Atlanta & West Point Railroad from Atlanta to Red Oak, about 15 miles' distant. Their purpose was and their instructions were to traverse the country in the vicinity of Red Oak, to search for and destroy illicit stills. Violent resistance to the enforcement of the internal revenue laws of the United States has not been uncommOn in the vicinity of Red Oak. This is shown by the following facts in evidence: One Eason, who was suspected of being a witness against violators of the revenue laws, had been murdered in that locality. About 5 o'clock P. M. of April 22d last two illicit stills, belonging to one Brown, were seized in the vicinity of Red Oak, by a party of revenue officers, and were carried off by them in the direction of Atlanta. The officers were pursued as far as East Point, within six miles of Atlanta, by an armed mob of between 20 and 40 men. They passed up the road in pursuit, making threats against the officers, and it was declared in the crowd that no still should again be seized in their neighborhood. In this party was Jones, the man who was killed on June 24th. In the latter part of May last John C. Hendrix, deputy collector of internal revenue, seized near Red Oak two stills, one of them running. The man in charge of it fled to a house shouting for help, and fired a gun. Immediately firing began in all quarters, and men with guns were seen running in different directions, and the revenue officers thought it prudent to retire from that neighborhood, and did retire immediately. On June 16th last Hendrix, with a posse in search of illicit stills, while passing along the highway, about three miles from Red Oak, was fired upon by a man standing in the door of a house. He fired six shots with a repeating rifle. After proceeding about a quarter of a mile Hendrix and his party were agl1in fired into, at the same moment from three different directions, by men in ambush. He concluded that his force was too weak, and abandoned the search for the still he was

STATE t1. PORT.

197

trying to find. Two of the defendants in this case were of the party of Hendrix, and the facts of these assaults were communicated by him officially to the office of the collector, and personally to the defendant Port. The reputation of the Red Oak neighborhood for violent resistance to the revenue law officers was known to the defendants. On this occasion the defenda.nts each carried a breech-loading carbine, and had a supply of loaded cartridges. During the night of June 23d, and before the day of June the 24th, Port and his posse had found and destroyed three distilleries, and before 19 o'clock of June 24th two more, all within three miles of Red Oak station. When halting for rest, after daylight, a party of three or four armed men were seen in the vicinity of the revenue posse, one of whom dropped down behind a tree. Among them was Jones, the deceased. They attracted the attention of the revenue officers, who all sprang to their feet, and the men ran away. Whenever a halt was made during the day the rev.enue posse put out pickets to guard against surprise and attack. About 2 o'clock P. M. of June 24th the defendants were proceeding along a publio road in the direction of a still near Trimble's mill, of which they had heard, and which it was their purpose to seize. The road was bordered on both sides with woods and underbrush. At a bend in the road the revenue party suddenly met five men, all armed, who leveled thGir guns upon them. One of them was Jones, the deceased, another Ratteree, the third Ross, and the other two unknown. Ross, who was a little in advance of the others, was taken into cnstody and told to come along with the revenue party, and if fonnd all right he would be set at liberty. He was disarmed. The other four men ran into the woods and disappeared, and as the revenue party advanced along the road opened fire from ambush on them. The guns of the revenue men were at this time empty, by the orders of Port, the officer in charge. They at once loaded and returned the fire, shooting rather at random at the spots where they saw the smoke of their assailants' guns. After the firing had ceased the revenue men proceeded on their way, and had advanced

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FEDERAL REPORTER.

about 200 yards further along the road, when they were again fired on from the underbrush with which the road was skirted. About 15 or 20 steps from the road was a cotton field, enclosed by a fence. The space between the road and fence was thickly covered with underbrush, and it was from this covert that the fire upon the revenue men was delivered. Jones, who was afterwards killed, was seen to fire, although only a part of his person was exposed. When he fired he was about 10 steps from the fence, and was seen to turn and run towards the fence. The fire of the party in the bushes was promptly returned by the revenue men. Seven or eight shots were discharged into the ambush. The officers then at once charged through the underbrush to the fence. Ratteree was found in the fencecorner outside the field, wounded in the arm and finger. Jones was seen to climb the fence and start across the field. He climbed the fence 15 or 20 steps from where Ratteree was lying. As Jones got down from the fence he fell forward on hi.s hands and knees. He got up and started across the field, ran 25 or 50 yards and fell again. He again got up and ran from 100 to 125 yards, and fell dead. One of the witnesses thinks he fell, in all, four times. Jones was found to be shot through the body, the ball entering his back and coming out at his breast. A double-barreled shot gun was found near him, both barrels of which appeared to have been recently discharged, and a pouch containing ammunition was found on his person. Two other persons disappeared in different directions. The claim on the part of the state is that as Jones was running through the fields, with his back to his pursuers, he was fired upon by them, and so received the fatal shot. This claim is supported by the evidence of Ross, who was in custody of the revenue party at the time, and by F. G. Suttles, who witnessed the occurrence from his house, 500 or 600 yards distant. The testimony for the defendants is to the effect that but few shots were fired after Jones crossed the fence, and these were aimed at the other persons, who were endoavoring to escape in other directions. One witness for the defence, and